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Senator Christopher Dodd, one of the original sponsors of the Family and Medical Leave Act, introduced a bill (S.1894) to amend the FMLA to permit family and non-family members up to 6 months of job-protected unpaid leave care for an injured combat veteran. The bill was introduced in reaction to the recent findings of the the Commission for America's Returning Wounded Warriors, chaired by former Senator Bob Dole.

The Commission found that 33 percent of active duty, 22 percent of reserve component, and 37 percent of retired/separated service members report that a family member or close friend relocated for extended periods of time to be with the injured combat veteran while they were in the hospital. The Commission also found that 21 percent of active duty, 15 percent of reserve component, and 24 percent of retired/separated service members say friends or family gave up a job to be with them or act as their caregivers. To address this situation, the Commission recommended extending the FMLA for up to 6 months for spouses and parents of seriously injured soldiers.

Not to be outdone, Presidential hopefuls Barack Obama, Joseph Biden, and Hillary Clinton quickly followed suit, announcing that they too would be introducing legalilation to extend the FMLA for spouses and parents of solders injured in combat. Senator Clinton's bill would permit up to 6 months of unpaid FMLA leave for this purpose. Upping the ante, the legislation proposed by Senators Obama and Biden would permit up to 1-year of leave.

Comment: Stay tuned. For obvious reasons, I believe that the FMLA is likely to be amended at some point for this purpose.

Whether the FMLA covers an employee's need for leave to provide psychological comfort and care to an unconscious parent was addressed in Bell v. Prefix, Inc., No. 05-74311, 2007 U.S. Dist. LEXIS 52837 (E.D. Mich. July 23, 2007). There, Bell's father fell after suffering an aortic aneurism. He was granted FMLA leave to attend to his father's health care and hospitalization. Bell left work early to be with his father the night before surgery. He discussed the surgery with his father. He returned to visit his father after the surgery. His father fell into a coma after the surgery. He remained in the coma until his death a few weeks later. On several occasions, Bell was granted FMLA leave to visit his father. His father was at all times incoherent and unable to visibly react to Bell's words. During these visits, Bell would discuss his father's condition and care with hospital staff, including approval of care. Bell was subsequently terminated allegedly due to a downsizing of his department. He sued, alleging that his dismissal was due to his use of FMLA leave.

Prefix argued that Bell's leave was not protected by the FMLA. It argued that he did not provide physical or psychological care because his father was comatose. Under established case law, merely visiting a sick parent does not, the employer argued, constitute providing care within the meaning of the FMLA. The court disagreed.

The time Bell spent with his father was psychological care. The court rejected the argument that the failure of a parent to visibly respond demonstrates that psychological care was not given during their post-surgery interactions. "Taken to its logical conclusion, Defendant's argument would leave the FMLA without an allowance for psychological care if the loved one was unable to visibly react to it." The court also noted that Bell did provide psychological care to his father before surgery when his father was conscious. It also noted that he participated in medical decisions for his father post-surgery, which is also covered by the FMLA. Addressing post-surgery psychological care, the court observed:

Although Defendant may question the quality of of that interaction because of Plaintiff's father's inability to interact ... it is clear that Plaintiff was attending to his father's psychological needs.

Comment: Under existing case law, merely visiting a sick family member did not constitute physical or psychological care within the meaning of the FMLA. The employer argued that, absent the ability to interact because the parent was in a coma, Bell could not provide psychological care within the meaning of the FMLA. As such, his absences were merely unprotected "visits." The court found that the ability of the recipient of the psychological care to visibly interact or respond to the care given was not required for FMLA protections.

Another way to look at the case is to view Bell's interaction with his father in its totality. There is no question that Bell provided psychological care prior to surgery when his father was conscious. Nor is there any doubt that he engaged in caring activities when he made post-surgery care decisions with hospital staff. Given that context, perhaps the court was saying that the time Bell spent talking to his comatose father was also "care" protected by the FMLA.

In Berry v. T-Mobile USA, Inc., No. 05-1533, 2007 U.S. App. LEXIS 15258 (10th Cir. June 27, 2007), the Tenth Circuit rejected the employee's argument that her employer's knowledge of her MS and suggestion that she apply for, and subsequent approval of, FMLA leave is evidence that T-Mobile considered Berry to be disabled within the meaning of the Americans with Disabilities Act ("ADA").

The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 USC 12102(2).

EEOC regulations provide three ways an individual may be "regarded as having a disability": (1) the individual may have an impairment that is not substantially limiting but is perceived by the defendant as constituting a substantially limiting impairment; (2) the individual may have an impairment that is substantially limiting only because of the attitudes of others toward the impairment; and (3) the individual may have no impairment at all but is regarded by the defendant has having a substantially limiting impairment. 29 CFR 1630.2(l).

The Tenth Circuit reasoned that the leave provisions of the FMLA are "wholly distinct from the statutory definition of "disability." While there may be some parallels between the ADA and FMLA, "applicable regulations explicitly state that ADA's 'disability' and the FMLA's 'serious health condition' are different concepts and must be analyzed separately. Given the very different focus of the two statutory protections, Kavanah's suggestion to apply for FMLA leave and T-Mobile's approval of Berry's application does not demonstrate an issue of fact as to whether Berry was considered disabled under the ADA. Consequently, Berry failed to present an case of discrimination under the ADA."

Comment: The decision of the Tenth Circuit is in line with decisions issued by the Sixth, Eighth, and Eleventh Circuits on this point. Without more, employer awareness of an employee's FMLA covered condition coupled with the suggestion that the employee apply for, and the employer approval of, FMLA leave does not constitute evidence that the employer "regarded" the employee as disabled within the meaning of the ADA.

In Whitaker v. Electronic Data Systems Corp., No. 3:05-CV-473-S, 2007 U.S. Dist. LEXIS 48658 (W.D. Ky. July 3, 2007), the employee alleged interference with his FMLA rights based on repeated phone calls from his supervisors during FMLA leave telling him to return to work. Whitaker alleged that the calls discouraged him from using FMLA leave, which is prohibited by 29 CFR 825.220(b). The court disagreed. According to the court:

Merely asking someone to return to work, however, does not amount to discouragement from taking leave. In order for Defendants to have discouraged Whitaker from taking FMLA leave, they must have provided a "power disincentive for taking FMLA leave." Coleman v. Blue Cross Blue Shield of Kan., No. 05-4149-JAR, 2007 WL 218903, at *2 (10th Cir. April 15, 1999).

As an example of a "power disincentive,"the court cited another case wherein the employer made repeated calls to the employee on FMLA leave culminating in a threat of termination if the employee did not return to work.

Here, in contrast, the court noted that the Defendants did not suggest any type of consequence if Whitaker refused to return to work. In fact, Whitaker did not claim he refused to return to work and actually admitted that, while on FMLA leave, he requested to return to work as soon as possible. Whitaker, the court concluded, was denied nothing.

Comment: The decision raises the bar on what is required to establish an interference claim based on employer actions that allegedly "chill" or discourage an employee from taking FMLA leave. Some courts will want to see fairly explicit evidence of a threat for an employee's exercise of FMLA rights. Other courts have set a relatively low standard, at least for purposes of summary judgment (where all inferences are drawn in favor of the non-moving party-usually the employee). For these courts, repeated calls during leave with instructions to return to work while, as in Whitaker, an employee is on an attendance control plan with the very real prospect of discipline for attendance violations, would likely tip the balance in favor of a finding of interference that discourages an employee for exercising their right to FMLA leave.

On Wednesday, June 27, 2007, the US Department of Labor reported on the Department's December 1, 2006, request for comments on the current FMLA regulations. The DOL received some 15,000 comments in response to the DOL's request for information regarding the effectiveness of the regulations. Notably, in an unusual move, the DOL did not propose any regulatory changes along with the issuance of the report. The Report, according to the DOL, would "provide information for a fuller discussion among all interested parties and policymakers about how some of the key FMLA regulatory provisions and their interpretations have played out in the workplace."

The Report made four general observations:

1. In the vast majority of cases the FMLA is working as intended.

2. Employee use of intermittent FMLA leave for chronic health conditions has been an administration problem for employers. Interestingly, the DOL observed that its own "regulatory decisions and interpretations may have contributed to this situation."

3. Employers, employees, and health care providers are not happy with the current medical certification process. The DOL opined that at least some of the blame for this unhappiness was due to a lack of understanding of FMLA rights and responsibilities by employers and employees. The DOL noted that it had more work to do to educate employees and employers on the FMLA.

The Report is available at http://www.dol.gov/esa/whd/Fmla2007Report.htm

Comment: The DOL appears to have decided not to change the current FMLA regulations. However, it still might tinker with guidance on intermittent FMLA leave.

In light of the DOL's decision to pass on changing the current regulations, it is very likely that Title I of the FMLA will remain unchanged through the end of President Bush's term in office. Because the three other federal sector variants of the FMLA are based on the DOL's Title I FMLA regulations, it is also unlikely that OPM or the Congressoinal Office of Compliance will be changing their FMLA regulations either.

Of course, there is the possibility that the Democrats will pass modifications to Title I of the FMLA before the end of the President's term in office. Such modifications might appy to other federal sector variants of the FMLA. It is unclear whether the President would sign such a law, or whether Congress has the votes to override a Presidential veto regarding same. Still, stranger things have happened during the run up to a Presidential election year. Stay turned!